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Unfair Dismissal – Award of €56,000 for Failure to Consider Alternatives to Redundancy

In the April case of a A Former Sales Manager v A Horse Products Sales Company an employee who was given insufficient time to consider an alternative role was awarded €56,000 for unfair dismissal.Whilst the employee received a letter in respect of her redundancy, it was explained that the consultation process was not finished and she was asked to consider three regional management positions on offer. The complainant accepted one of the positions which was based in France but sought more time to review the French contract as the terms and conditions were drastically different from her original contract.The Adjudicator looked at the seminal case in redundancy of JVC Europe Ltd v Ponisi [2011] IEHC 279 where Charleton J stated;“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”    Judge Charlton also remarked that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.In this case it was noted that the complainant was furnished with a contract of employment, job specification, key performance measures for her position until very late. The complainant was told that if she did not meet the respondent 2 days later “to make further arrangements and sign the enclosed documents this will be treated as your rejection of this role and may be treated as your resignation from the company.” This was extended for a further day and ultimately the employer gave the employee a final chance to respond and her employment was terminated 2 days later.In essence the employee was given 9 days to review and accept a new contract of employment. The Adjudicator recognised the employer’s frustration but also considered that this was not a sufficient period for an employee to consider a new role in a different county whilst she was pregnant and unaware of her maternity rights etc.The Adjudicator concluded”The complainant was only given definite information on the new role when she was given notice by the respondent and made to leave their premises. Then, as outlined above, she was only given nine days to fully consider this new position in a different country before her employment was terminated. From the evidence given the complainant was still actively interested in this role but was not given sufficient time to get a French lawyer to advise her on the new contract.I therefore find the respondent did not exhaust the alternatives to dismissal and as such did not have reasonable cause to dismiss the complainant at that time. This amounts to an unfair dismissal” 

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